Cutting Public Defenders Can Cost Federal Government More

Courts in Tucson, Ariz., are turning to private lawyers to represent clients who would have had public defenders.
Chris Morrison/AP
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Chris Morrison/AP

Courts in Tucson, Ariz., are turning to private lawyers to represent clients who would have had public defenders.

Chris Morrison/AP

These days, the Federal Public Defender's Office in Tucson, Ariz., has lots of space. Since the federal budget cuts known as sequestration began, the office has lost a quarter of its staff to layoffs or furloughs.

Under the Constitution, clients still need legal representation, so judges have to appoint private attorneys to replace the public defenders.

The sequester was supposed to save money. But in this case, the sequester is costing federal dollars.

In Arizona, using private attorneys costs the government about 25 percent more than using public defenders — that's about $6 million a year. In other places around the country, the difference can be even greater.

A typical case in Tucson illustrates the problem: A driver tries crossing from Mexico into the United States through a port of entry. A customs officer gets suspicious and discovers 180 pounds of marijuana in the car. The driver is arrested, and the court appoints a lawyer.

When the lawyer meets with the client, public defender Vicki Brambl says, there's a twist.

"The client reveals that he had been threatened by drug cartels, that he didn't want to bring the marijuana across," she explains. "But he was threatened, and the life of his wife and children were threatened, and so he agreed to cross the marijuana."

She says that's an increasingly common situation as drug cartels extend their influence in Mexico. But the client has to prove his story in court. He needs witnesses to corroborate it. "You have to investigate that and try to talk to family members," she says.

That takes legwork. The public defender has investigators and paralegals on staff and built into its budget. Private lawyers have to hire people like investigators, then charge the court piecemeal.

Brambl says even things like travel cost more. Public defenders carpool in government vehicles to meet with clients at the federal prison in Florence, Ariz. Private lawyers get paid separately to drive back and forth.

More On The Sequester

"That's a three-hour round trip, every time they need to go out there," she says.

To cut costs, a committee of federal judges recently voted to delay payment to private lawyers for up to four weeks, and reduce hourly pay from $125 to $110. Bruce Moyer, government relations counsel for the Federal Bar Association, says the cut is still not enough to balance the ledger.

"Federal defenders, even with the reduction in compensation paid to members of the bar in representing indigent defendants, is still a more cost-effective approach," Moyer says.

U.S. District Court Judge Raner Collins in Tucson says the entire judicial system ends up costing more.

"You have more delays in terms of cases getting to trial, getting processed through the system," Collins says. "You have people spending more time in detention. That costs more money."

Collins is one of many judges — including Supreme Court justices — calling for restoring money to federal public defenders. But they have a bigger concern: They worry that using more private attorneys will degrade the effectiveness of legal representation.

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, opposes cuts to both public defenders and private attorneys.

"The real problem is what it means for the quality of the defense that's available to people who can't afford a lawyer in perhaps the most trying moment of their lives," Reimer says.

Clarification Aug. 26, 2013

The audio version of this story, as in a previous Web version, may give the impression that Norman Reimer views private defense attorneys as less effective than public defenders in federal criminal cases. Reimer does not hold this view. He opposes budget cuts to both public defenders and private lawyers hired by the government.